Age and Disability: Know Your Rights

If you've been on the job market lately, you know that many employers are now required by law to include a question on the job application regarding disabilities. And while the application is required to list potential disabilities to make it easier to self-identify, any boomer that's still in the job market should pause and reflect, and perhaps even talk to a disability specialist, before checking the "NO" box.

Like many developed nations around the world, the U.S. has a long history of discriminating against those with disabilities. In fact in 1927 The United States Supreme Court upheld a ruling that women whose mother and daughter were both mentally retarded could be forced to be sterilized. The Court stated in the ruling that these individuals would "sap the strength of the state," were "menaces" and society should "prevent those who are manifestly unfit from continuing their kind and that three generations of imbeciles are enough."

Thankfully we've come a long way since then. The Americans with Disabilities Act, signed into law by Bush the First in 1990, is a broad-based civil rights law that makes it illegal to discriminate based on disability. The ADA also requires covered employers to provide "reasonable accommodations" to disabled employees, as well as physical modifications that improve access to public places, the most obvious being the wheelchair ramp and jumbo stalls with handrails in public restrooms.

The ADA Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA), primarily with regard to mental disabilities. This has broad implications for older employees and job seekers that, to put it bluntly, have had more time and thus more plentiful opportunities to become disabled in some shape or form. (See "Boomers at Fifty: The Decade of Discombobulation")

The official EEOC fact sheet on disabilities states that a condition does not need to be severe or permanent to be a disability, and may include any of the following:

deafness

blindness

an intellectual disability (formerly termed mental retardation)

partially or completely missing limbs or mobility impairments requiring the use of a wheelchair

autism

cancer

cerebral palsy

diabetes

epilepsy

Human Immunodeficiency Virus (HIV) infection

multiple sclerosis

muscular dystrophy

major depressive disorder

bipolar disorder

post-traumatic stress disorder

obsessive compulsive disorder

schizophrenia

It does not cover kleptomania, pedophilia, exhibitionism, or voyeurism. Nor does it include alcoholism and drug addiction, which are considered by many in the medical community to be diseases that are often genetic.

The Equal Employment Opportunity Commission (EEOC) provides the regulations that implement the ADAAA, which are mandated by Congress to be applied broadly across a variety of conditions. The ADA's definition of "disability", therefore, is described as "a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability."

Such definitions are what make the legal world go around. While the rules state that "an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered substantially limiting," not every impairment constitutes a disability. Determining whether an impairment substantially limits a major life activity is assessed individually, case by case, and should not require extensive analysis, according to the EEOC fact sheet.

Where does that leave the battle-worn boomers that are still tasked with bringing home the bacon? Have the first forty, fifty, sixty years of life left you with scars that might qualify as disabilities, and if so, will it help or hurt your chances for gainful employment? Will claiming a disability make it easier to keep the job you already have?

One of the more common age-related disabilities is Type II Diabetes, which can significantly restrict major life activities with debilitating neuropathic pain in the extremities and other symptoms. Another is fibromyalgia, though it can manifest at any stage in life. Other age-related conditions can lead to chronic pain that requires medication to manage. All of these impairments, and more, affect your ability to perform on the job. So it behooves boomers, especially those that need to continue working, to investigate whether their disability requires accommodations from current or prospective employers.

Prior to the enactment of the ADA Amendments Act of 2008, a paper by the National Bureau of Economic Research suggested that the increased cost to employers associated with hiring the disabled resulted in a "negative effect on disabled men of all ages and disabled women under 40." The paper concludes that the costs of providing "reasonable accommodation" were primarily responsible for the negative effects of the ADA. Today, a boomer suffering from chronic pain may find "reasonable accommodation" to be more flexible hours, the ability to work from home, and other simple remedies that don't cost the employer a dime.

Common sense might suggest that aging boomers that have acquired a disability over the years and are either looking for work or simply trying to hold onto the job they have be honest with their employer or prospective employer about their condition. There doesn't appear to be any evidence to suggest that checking the "Yes, I have a disability" box on an employment application is likely to land an interview, especially since it's pretty easy for the hiring manager to deduce your age from your resume. However it may be worth checking the box if you've consulted with a disability attorney and are confident that your condition qualifies. If you've got the experience and qualifications for the position being offered, indicating that you have a disability might provide grounds for a discrimination case if you can prove that, everything else being equal between you and other applicants, you're a perfect fit for the job.

In the final analysis, claiming age and/or disability discrimination can be a path fraught with peril, in which we might win the battle but still lose the war. Still, as with anything affecting your life, liberty and pursuit of happiness, the most important thing is to know the history of your rights as a disabled individual, whether or not your disability is age-related. For boomers that are still ready and able to work, anti-discrimination laws should, theoretically, help us keep going. From this writer's point of view, that remains to be seen.